Wednesday, November 16, 2011

Salzman on Guardianship

By limiting an individual’s right to make decisions, guardianship removes the individual from a range of human, social, and civic interactions thereby imposing a form of unjust and impermissible segregation. After discussing some of the problems with existing guardianship laws, and why guardianship is particularly ill-suited for individuals with psychosocial disabilities, the Article analyzes guardianship through the lens of the ADA’s integration mandate, referring to provisions of the U.N. Convention on the Rights of Persons with Disabilities for normative support, to argue that states should, and possibly must, modify guardianship systems to provide decision-making support as a less restrictive form of assistance. In the case of individuals with psychosocial conditions, where there tends to be a conscious or unconscious presumption of incapacity that is not empirically justified, and where the provision of support rather than the removal of decision-making rights has significant therapeutic benefits, the shift from surrogate to supported decision making is critical.